17-CIV-05199 HONG TRUONG VS. HERITAGE RESIDENTIAL CARE, INC., ET AL.

HONG TRUONG HERITAGE RESIDENTIAL CARE, INC.
CASEY A. KAUFMAN MARK L. DAWSON

DEFENDANT HERITAGE RESIDENTIAL CARE, INC.’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS TENTATIVE RULING:

Defendant Heritage Residential Care’s motion to compel production of documents is DENIED. The photos at issue are protected by the attorney work product privilege set forth at CCP 2018.030. The moving party has not established that denial of discovery will result in unfair prejudice in preparing its defense.

Under the general rules relating to work product, it appears that the photographs at issue are protected under at least a “qualified” work product privilege. Plaintiff asserts that the “sole purpose of the visit [to the accident site] was to analyze liability” and that the presence of the liability expert consultant corroborates this claim. Counsel states that “the subjects, viewing angles, and particular close-ups contained in the photographs were specifically chosen in response to plaintiff’s counsel’s theories of liability.” Taking these statements at face value, it appears that counsel has established that the photos are derivative, as they reflect his evaluation of the question of liability. Accordingly, it appears the Plaintiff has met his burden of showing the photographs are privileged.

Heritage essentially claims it is inconceivable that a photograph could communicate counsel’s impressions, but does not present compelling argument in support of this claim. At least one California decision (Suezaki v. Sup.Ct. (1962) 58 C2d 166, 177-178) indicates that photographs can contain an attorney’s impressions. Heritage does not present contrary authority from California or elsewhere.

i. Prejudice

If the photos are protected only by a qualified work product privilege, it’s not clear that the circumstances warrant disclosure. Counsel for Heritage notes that it was retained in 2018 and therefore did not have an opportunity to inspect the scene immediately following the accident. However, as noted by Plaintiff, Heritage, which is owned by Defendant De La Cruz, is located at the accident scene. It had an opportunity to take photos of the accident scene at any time following the accident. Further, Heritage does not indicate whether it took advantage of this opportunity, or whether it possesses any photos of the accident scene taken during the same time period. This is not an inappropriate question to ask at this stage of the litigation.

Ultimately, because (1) Heritage had access to the property/accident scene at all times following the accident, and (2) does not allege whether it has photos of the scene from the same time period, Heritage has not established that denial of discovery will result in unfair prejudice in preparing its defense.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 is required as the tentative ruling affords sufficient notice to the parties. Prevailing party shall provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.